Pedroza v Leinen

Judgment 1COMMISSIONER: This is an application pursuant to s14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owners of a property in Bowral against the owners of trees growing on an adjoining property. 2The applicants are seeking Court orders requiring the respondents "to maintain the trees (hedge) at a certain height, width or shape (2.5m height and 1m width) ensuring no encroachment onto the applicants property" . These orders are sought on the basis that the trees severely obstruct sunlight to 7 windows and one glass laundry door of their dwelling. 3The trees in question are a row of x Cupressocyparis leylandii 'Leighton Green' planted in about 2001 by the respondents along the eastern boundary of their property. This planting adjoins a similar row of the same species planted by the applicants on the western boundary of their one acre property. While the parties dispute who planted their trees first, the applicants' trees were planted at about the same time they built their house in 2001. The applicants' trees are approximately 2m from the western side of their dwelling. The applicants contend that they maintain their hedge at 2.5m high and 1 m wide and so too should the respondents. 4Apart from the loss of sunlight to windows, the applicants claim that the trees have denied access to sunlight to their garden, which has impacted on their ability to dry clothes in the backyard, grow fruit trees and lawn in certain parts of the garden, and on their ability to enjoy their backyard. The applicants also claim that the lack of sunshine has contributed to mould on their house. They are also concerned that the roots may damage water and sewer lines. The applicants also object to foliage overhanging their property. 5With respect to the applicants concerns. Firstly, Part 2A does not apply to obstruction of sunlight to gardens. Secondly, under Part 2A whether foliage overhangs a property is only relevant if the foliage contributes to the severe obstruction of sunlight or views. Thirdly, the application is made under Part 2A only. Issues of damage or future damage are covered under Part 2 of the Act. Even if the applicants were so minded to make an application pursuant to s 7 Part 2 they should note the finding in Hendry & anor v Olsson & anor [2010] NSWLEC 1302 with respect to mould. With respect to future sewer blockages the applicants would need to prove from which trees on which property the roots might have come. 6The windows in contention are W1 and W2, two south-facing bedroom windows. These windows are at the front of the applicants' dwelling and face onto a relatively wide, covered verandah. The remaining windows and door are on the western side of their dwelling. W3 is a bathroom window, W4 a toilet window, then follows the glass panelled laundry door, W5 is the laundry window, and W6 and W7 are two small bedroom windows. 7In their application, the applicants do not specify how much sun is lost to each of the windows, rather the estimated number of hours of sun lost applies to all windows. At the time the application was made, they contend that they lost all sunlight to the windows for each of the seasons as follows: in autumn, between 1.00 and 5.30 pm; in winter, between 12.30 and 5.00 pm; in spring, between 2.00 and 7.00 pm; and in summer, between 2.30 and 7.30 pm. The applicants do not state what sun they received but from the way in which they have stated the hours they have lost, it is assumed that they received sun at some stage. However, given the southerly and westerly aspect of the windows this would inevitably be limited by the aspect and by the applicants' own hedge. 8The circumstances of this matter appear to be that the application was filed on 18 April 2011 when the respondents' trees were taller, however, due to issues of service of documents, the matter was delayed in coming to a hearing. The directions hearing took place by telephone on 20 June 2011. It transpires that the respondents pruned the trees on 20 May 2011; this fact was evidently raised by the respondents at the directions hearing and is also noted in the applicants' supplementary information filed with the Court on 1 July 2011. 9Despite the trees being pruned, the matter progressed to a hearing because the applicants were concerned about the following matters (quoted from their supplementary material): (a)The Respondents' Leighton Green hedge still encroaches our property; (b)The Respondents' Leighton Green hedge has been lopped well above the legal recommended limit of 2.5 metres in height; (c)We are concerned with the future ongoing maintenance of the Respondents' Leighton Green hedge as it is currently half a metre higher in places than our hedge, making the eastern side of the Respondents' Leighton Green hedge difficult to maintain; (d)Further to the works carried out by the Respondents on 20 May 2011 the Respondents left a significant amount of their Leighton Green prunings on our property between the fence line and our hedge. This created a cleanup of works for ourselves of more than 3 hours. We are concerned that any future maintenance carried out by the Respondents on their Leighton Green will have similar ramifications for us. We therefore would request, in addition to the Orders sought by us in the Tree Dispute Application, a further Order that any pruning debris, as a result of maintenance of the Respondents' Leighton Green hedge, is disposed of by the Respondent on their own property-not ours. (e)The current method of lopping of the Respondents' Leighton Green hedge may present access difficulties to carry out future maintenance on their hedge. As a result we do not provide any consent for the Respondents to access our property to maintain their Leighton Green hedge. We therefore, would request a further Order that access to the Applicants' property for any purpose including hedging of the said Leighton Green hedge is not approved. 10Turning to the jurisdictional matters that the Court must determine. I am satisfied that the trees meet the necessary tests in s 14A, that is, there are two or more trees planted so as to form a hedge, which rise to a height of at least 2.5m and which are growing on appropriately zoned land. 11The next relevant test is s 14E(2)(a)(i). This states that the Court must not make an order under this Part unless it is satisfied that the trees concerned are severely obstructing sunlight to a window on the applicants' land. 12In this regard, while I accept that the trees were taller when the application was made, the trees have now been cut to a height only about 500mm above the height of the applicants' own 1 m wide hedge located only 2 m from their western wall. A critical word in s 14E(2)(a) is the word are ; that is, the trees must be severely obstructing sunlight to windows at the time of the hearing. 13The applicants could not satisfy me that this was the case and so the application is dismissed. However, I wish to make some additional comments and observations had the matter progressed to consideration of s 14E(2)(b) and the discretionary matters in s 14F. 14Firstly, windows 1 and 2 face south and are covered by a verandah; it would seem to me that these windows would naturally receive little direct sunlight because of these factors. Secondly, the windows on the western side of the house are small and mostly associated with utility rooms or rooms occupied for relatively short periods or at night. None of the windows were associated with living areas. 15It would seem to me that the additional orders the applicants seek are unreasonable in the circumstances that the two hedges abut each other and that the applicants are requiring on-going pruning and removal of debris but denying access for this to occur in a practical way. 16I note in point (b) of their supplementary material the applicants refer to the "legal recommended limit of 2.5 metres in height". The applicants appear to have interpreted the height of 2.5 m specified in s 14A as the 'legal limit'; as explained in McLaren v Lewis [2011] NSWLEC 1170 at [35], this is not the case. 34 However, before concluding it is worth addressing the applicant's interpretation of the Trees Act as amended in August 2010. The Act does not place a prohibition on the growing of high shrubs, trees or hedges that may at some stage obstruct sunlight or views. The height of 2.5 m is the height threshold at which the jurisdiction is, in part, enlivened. The Act does not specify any height to which all plants must be maintained. The amendment, as provided in s 14B, simply enables an owner or occupier of land to apply to the Court to remedy, restrain or prevent a severe obstruction of either sunlight to a window of a dwelling and or of any view from a dwelling. The dwelling must be situated on an applicant's land and the trees must be trees to which Part 2A of the Act applies, that is as specified in s 14A, and be on adjoining land. Section 14D(1) enables the Court to make any orders it thinks fit to remedy, restrain or prevent the severe obstruction of sunlight to a window of a dwelling and or a view from a dwelling but only if the jurisdiction is enlivened. Any orders so made may place an obligation on the owner of that hedge. 17However, as stated above, as I find that s 14E(2)(a)(ii) is not satisfied, no orders can be made for any intervention with any of the trees subject to this application. As indicated in the matter of Hinde v Anderson & anor [2009] NSWLEC 1148, should the circumstances change, a fresh application can be made. 18Therefore as a consequence of the forgoing, the Orders of the Court are: (1)(1) The application is dismissed.